Friday, August 11, 2006

IP Scholars conference, fifth parallel session

I actually switched rooms this time, because Eric Goldman's piece is so relevant to my current work. So this is sort of a pastiche of panels.

Sonia Katyal, Property Outlaws II: Free(dom) Riding in the Age of Intellectual Property.Katyal considers IP, and property generally, as a delegation doctrine allowing individual owners to decide who can access property.IP law has more of a nondelegation doctrine than general property law, and Katyal discusses the types of “disobedient” users whose activities have generated this doctrine.There are acquisitive users (consumers, innovators) and expressive users (commentators, creators).Considering IP dissent as freedom riding preserves both informational and redistributive values.

The system can dynamically change to convert an outlaw into a law-abiding citizen – but Katyal’s not concerned so much about outlaws who are disobeying IP law as outlaws who are disobeying a particular IP owner.That is, just taking stuff isn’t enough to qualify you as a freedom rider.But there is a tension here, in that civil disobedience is expressive in being disobedience, so if you make protest legitimate some of its force may be lost.

Mark Lemley suggested that keeping it illegal but making it harder for IP owners to enforce the law might help resolve some of that tension.

Comment: consider the role of private forbearance (the flip side of what Lemley’s talking about) in shaping disobedience, just as prosecutorial discretion moderates civil disobedience in criminal law.

Tyler Ochoa, Who Owns an Avatar? Assessing Claims of Copyright Ownership in Virtual Worlds.The topic: law in massively multiplayer online roleplaying games that allow players to create characters and interact with the game environment and with other avatars.End-user agreements might control a fair amount of behavior, but might be preempted or otherwise affected by default ownership (e.g., for termination purposes).So Ochoa wants to ignore the EULA for now and start with default ownership rules.

The game programmer wants to say we own everything, because the avatar can’t do anything the code doesn’t allow.That’s overly simplistic, because there’s lots that isn’t dictated by the game provider.(1)Appearance – there’s lots of freedom in most games these days, such as City of Heroes.(2)Capabilities – somewhat more constrained.Are capabilities even copyrightable?They may define the character, as with Superman’s “faster than a speeding bullet.”(3)Behavior – though feedback is provided by the game environment, behavior can be relatively unconstrained.(4)Dialogue – created by the user.

What about fixation?Appearance and capabilities are fixed in data that resides on a server, and saved each time we log off.We’re used to thinking of works as fixed and finished things, but characters in games keep changing each time they’re played.This is a bit of a puzzle for copyright.Behavior/dialogue – what you think of that depends on what you think of the RAM copy doctrine, but with screen captures a lot of times dialogue can be captured and stored.

What originality is there and who contributes that originality?The game provider provides constraints, but within those constraints there is a certain freedom.Ownership depends on degrees of freedom provided.If all you can do is pick one of four characters, that’s not a copyrightable choice.But that’s not how it works today; you’re choosing from a range of options for each of 15 different variables.That eventually becomes an original selection and arrangement.All works are selection and arrangement in some sense.This is a crucial move: if you’re selecting from the game designer’s copyrighted individual components, like short stories, then the game designer has a lot to say about the rights in the resulting compilation/collective work.If you’re selecting from the crayons in the box, Crayola does not have rights in the resulting “compilation.”Ochoa thinks generally the attributes are uncopyrightable, more crayons than short stories, but things like the appearance of different types of shoulders one can choose are not quite the same as individual words from a dictionary.

Sometimes the character will be a derivative work.If you play a Star Wars game, they can give you a Wookie template and you can create your own distinct Wookie, but the Wookies are still Star Wars characters and so any Wookie will be a derivative work. (Hmm… I’m not sure I agree with that, but that also depends on whether you think that Superman is the sum of his capabilities, about which I’m also dubious.)

What about when you’re playing the game?The contribution of the game provider vastly overwhelms individual contributions.So a game played by lots of people consists of a collective work, to which users contribute material, just like the New York Times is made of works made for hire by reporters plus contributions by freelancers.The game provider thus has the right to reproduce your character inside the game.But if it wants to make a movie based on the game, it can’t include your character without your permission.

Question: Does this mean that characters can demand the destruction of imitative characters, or the forfeiture of their magic boots?Answer: The stock character doctrine would affect this, but if a person has really copied another’s character, then that may be infringement given how many alternative choices there are.If the character has value outside the virtual world, why let a copier profit from it?

Anupam Chander: You may be saying that it’s property, not that it’s copyrightable.We could approach it through a different lens.People are laboring in these virtual worlds.Copyright is expansive but maybe shouldn’t expand here.Answer: Let’s take law as given at first and ask what would happen under the law as currently written, and the originality standard is so low that approaching it from the lens of copyright could succeed.

My observation: The psychological and sociological literature on creativity might be of interest here.Some of that literature suggests that creativity is itself a function of constraint, that we do best when we have limits on some of our major parameters.Perhaps characters are freest when they are partially predefined: A game character who’s a troll who loves ballet and has a French accent, for example, might tickle our fancies more than a regular character in a novel.

Eddan Katz, Copyright Contraband.Katz is engaged in an attempt to bring moral coherence to the criminalization of copyright infringement and the attribution of moral culpability to seductive technology such as P2P and circumvention technology.Currently, we risk criminalizing ordinary technologies because their capabilities are more important to us than their actual uses, just as the TSA has banned a lot of ordinary materials because of the risk of bad content/uses.

In the P2P environment, copyright contraband appears via the NET Act.The relationship between the user and the technology means ordinary users will violate the law merely through joining the network because they’ll be sharing a folder of music files which will easily meet the statutory minimum amount.Intentionality is imputed to the technology by describing ordinary use as deserving criminal sanctions.The DOJ has only gone after warez traders and people with a much greater degree of social harm, but an internal memo from the IP task force report proudly states that P2P networks aren’t allowed on the DOJ network – internally, the technology itself is banned.

Inducement offers a useful test – the designer is morally culpable for the design of the technology.

Question: Is there really a problem of assessing mens rea (where we’re wrongly attributing intention to technology) or are we blaming the designers, as you suggest at the end?Answer: Sony and Grokster are both about capabilities, positive and negative uses.What he’s trying to show is that takes the potential harm and imputes intentionality to a device without seeing the larger context.We’re trying to force designers to foresee use and misuse, which requires conjecture about what they should have thought about.

Eric Goldman, Brand Spillovers.Offline use of the selling power of trademarks to promote other products is everywhere, mentioned in caselaw dicta, and assumed to be totally okay.Goldman is investigating those offline actual practices such as loss leaders, shelf space adjacency, and trademark-triggered merchandising (complements such as software that goes with hardware, couponing).Retailers are strictly liable if they sell infringing goods, and if they attach infringing labels on packages.But getting people to express an interest in a trademark and making money from that hasn’t triggered liability as far as he can find.

The online equivalent, however, has led to uncertain liability for search engines and others like pop-up advertisers taking advantage of a consumer’s expression of interest in a brand and creating physical or temporal adjacency.The cases are wrestling with whether there’s trademark use, confusion, etc.

What is the difference?An economic analysis: Maybe the retailers should be liable because TM owners create positive externalities for retailers, driving consumers to stores where they buy stuff from other people.But Goldman suggests there’s not much externality; the pricing mechanism can solve this because manufacturers and retailers are actually dealing with each other or with distributors in a chain.However, some beneficiaries of the redirected interest aren’t in that chain and thus the pricing mechanism can’t capture that.

Goldman’s other counterargument: If we’re trying to maximize social welfare, we should consider third-party welfare.Consumers benefit from these retailer practices.Retailers have the ability to reduce consumer search costs (by selling complements, etc.) though sometimes they deliberately inflate search costs (because the longer someone is in the store, the more she spends).Retailers have an incentive to make the shopping experience good enough that consumers find what they’re looking for, and that lowers transactions/search costs.

What we’re fighting about is who’s the best person to decide who makes matches between manufacturers and consumers: regulators, trademark owners, or retailers?As between those three, Goldman thinks retailers are the best.We can learn a lesson there for the online world.

My reactions: As a practical matter, it may be that online retailers live by the statute, and die by the statute: That is, online intermediaries may be “using” the trademark in advertising in ways offline retailers aren’t.Also, the costs of reorganizing stores alphabetically or isolating marks from other brands in the offline world are just greater, so it’s easier to imagine a non-spillover world online.

Bob Brauneis: Producers frequently offer to make the house brand for the retailer, allowing price discrimination, showing that it’s good for them too.Goldman: That isn’t a complete solution (especially when there are two or more national brands in that category).

Mark McKenna: There are spillovers to other brands: Pepsi along with Coke in the soda aisle.But no one goes to a grocery store with only one brand of everything.There are positive externalities in both directions for Coke and Pepsi; valuable brands may get as much as they give.Goldman: People do go to stores that only sell one brand of vacuum cleaner, though.(Trader Joe’s?)Online, the costs of selling only one brand are lower because it’s easier to go from store to store, which may justify a distinction.

Mark Lemley: TM owners are acting differently online just because it’s new.Comparison to offline uses are useful rhetorically, but the big point is that spillovers are not a big deal.Not all spillovers must be internalized; real economists realize this.

Sharon Sandeen: Retailer liability exists for shelf space sales/slotting fees, and that has prompted antitrust/unfair competition litigation.Response: Maybe Google will face that eventually, but right now there’s less market power.We tend to ignore the retailer’s role, but often the retailer can dictate terms, as with Wal-Mart – maybe we should pay more attention.

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